The Enforcement Directorate (ED) is a law enforcement agency and economic intelligence agency responsible for enforcing economic laws and fighting economic crime in India. It is an agency that is governed by the laws and regulations of India and operates under the Ministry of Finance, Department of Revenue. The Enforcement Directorate (ED) has five regional offices – Delhi, Mumbai, Chennai, Chandigarh and Kolkata. Now ED has an office in each state . Its headquartered is at Delhi and headed by a Joint Director (Admin). Directorate of Enforcement. Pravartan Bhawan, APJ Abdul Kalam Road. New Delhi – 110 011.
ED was established in 1956 and derives its powers from the Prevention of Money Laundering Act (PMLA) 2002, which is a law passed by the Parliament of India. The PMLA gives the ED the power to investigate and prosecute cases related to money laundering, terrorist financing, and other financial crimes.
The ED is an autonomous body, which means that it has the power to conduct its own investigations and take action without interference from any other agency or department of the government. However, it is still accountable to the government and has to submit periodic reports to the Ministry of Finance.
The Enforcement Directorate (ED) is a specialized agency that is responsible for enforcing economic laws and fighting economic crime in India. The following are the key processes followed by the ED in its operations:
Investigation: The ED initiates an investigation based on the information received or suo motu based on its own intelligence gathering. During this stage, the agency gathers information from various sources, including banks, financial institutions, and other relevant entities.
Collection of evidence: Once the investigation is initiated, the ED collects evidence, such as financial documents, bank statements, property deeds, and other relevant material, to establish a case of economic offense.
Analysis of evidence: The collected evidence is then analyzed to determine the nature and extent of the economic offense, including the amount of money involved, the parties involved, and the modus operandi used.
Arrest and detention: If the ED finds prima facie evidence of an economic offense, it may arrest and detain the accused person under the provisions of the Prevention of Money Laundering Act (PMLA), 2002.
Prosecution: After completing the investigation and collecting sufficient evidence, the ED files a complaint before the Adjudicating Authority under the PMLA for the confiscation of proceeds of crime. The ED can also file a criminal complaint against the accused under the relevant laws.
Confiscation and disposal of assets: If the accused is found guilty, the ED can confiscate the proceeds of crime and dispose of them as per the provisions of the law.
In summary, the Enforcement Directorate follows a well-defined process of investigation, evidence collection, analysis, arrest, prosecution, and confiscation of assets to enforce economic laws and fight against economic crime in India.
If you are facing an investigation or prosecution by the Enforcement Directorate (ED), it is advisable to hire a lawyer who is experienced in dealing with ED cases. The lawyer’s primary role would be to advise and represent you in all stages of the legal proceedings.
ROLE OF LAWYER FOR ED CASE :
Legal advice: The lawyer can provide you with legal advice on the implications of the investigation or prosecution, and the possible consequences of the ED’s actions. They can also advise you on your rights and obligations under the law and suggest the best course of action.
Representation: The lawyer can represent you before the ED and in court, ensuring that your interests are protected and that you are given a fair hearing. They can also negotiate on your behalf and try to reach a settlement with the ED.
Documentation: The lawyer can help you in preparing and filing all the necessary documents and paperwork, such as affidavits, bail applications, and other legal pleadings.
Defense strategy: The lawyer can help you in formulating a defense strategy, based on the facts of the case and the applicable laws. They can also help you in gathering evidence and presenting it in court.
Mitigation of penalties: In case you are found guilty, the lawyer can help you in mitigating the penalties imposed by the ED, such as fines or confiscation of assets.
In summary, hiring a lawyer in an ED case is highly advisable, as they can provide you with legal advice, represent you before the ED and in court, help you with documentation, formulate a defense strategy, and mitigate the penalties imposed by the ED.
In case you have been arrested by the Enforcement Directorate (ED) in connection with an economic offense case, you may be eligible for bail. Here are the steps you can take to get bail in an ED case:
File a bail application: You or your lawyer can file a bail application before the appropriate court or the Adjudicating Authority, depending on the stage of the proceedings.
Grounds for bail: In the bail application, you or your lawyer must mention the grounds for bail, such as the absence of a prima facie case, lack of evidence against you, medical reasons, or any other relevant grounds.
Supporting documents: The bail application must be supported by documents such as your medical records, character certificates, and any other documents that support your case.
Opposing the ED’s arguments: The ED may oppose your bail application by presenting its arguments, including the seriousness of the offense, the likelihood of your fleeing the jurisdiction, or tampering with the evidence. Your lawyer will need to counter these arguments.
Court hearing: The court or the Adjudicating Authority will hear both sides and decide on the bail application. The decision may be based on factors such as the severity of the offense, the likelihood of you fleeing, the strength of the evidence, and your past criminal record.
Bail conditions: If you are granted bail, you may be required to fulfill certain conditions such as submitting your passport, not leaving the jurisdiction, and reporting to the ED or the court regularly.
In summary, to get bail in an ED case, you or your lawyer must file a bail application, mention the grounds for bail, support it with relevant documents, counter the ED’s arguments, attend the court hearing, and comply with the bail conditions, if granted.
Lawyers are prohibited from appearing before Enforcement Directorate at their offices during the investigation stage of the case. However, engaging a lawyer for ED leads to several:
Lawyers will provide you with chances of your being arrested or if you are only being summoned as a witness to assist in the investigations.
They will advise you on seeking bail if required.
They will advise you to make a correct statement before the officials so that you are cooperating with the Investigation. This step is essential as it reduces the cycle of meetings and appearances before the investigation authorities.
It will make the accused understand their rights and obligations during an investigation and how best to satisfy the Investigation Officer with evidence and studies.
In many cases, the department of ED would allow lawyers to appear, submit papers and even answers the question. However, special permission would be required to do so. This may mainly happen if the accused are outside India or have medical emergencies for themselves or close relations to show to the authorities.
Section 3 of PMLA describes the offence of Money Laundering. It states that whosoever directly or indirectly attempts to indulge or knowingly assists or is a party or is involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty of money laundering.
Process followed by Enforcement Directorate (ED)
After money laundering information, the ED uses Section 16 (the power of survey) and Section 17 (search and seizure) of the PMLA to examine the property and investigate and seize money and documents.
ED generates a complaint document called ECIR – Enforcement Case Information Report (ECIR), which is equivalent to First Information Report (FIR) generated when a criminal case is lodged at a Police Station. Unlike a police FIR, the Supreme Court of India has held that the ED doesn’t need to provide a copy of the ECIR to an accused or a suspect.
The ED determines whether an arrest is necessary for accordance with Section 19 based on such (power of arrest). The ED is also permitted to conduct a search and seizure directly under Section 50 of the PMLA without contacting the accused for questioning. ED is not required to call the accused before making a search, seizure, or arrest.
Powers of Enforcement Director
In a recent judgement by the Supreme Court of India, Vijay Madanlal Choudhary (2003), the Honorable Court gave unfettered, blank-wide powers to Enforcement Directorate to investigate the offences under the Prevention of Money Laundering Act (PMLA). The Supreme Court laid down the following:
Confession in Custody: Whereas principles of natural justice and. Criminal Procedure Code states that any confession made in police custody is not admissible in a court of law. However, in case of investigation or admission made by the accused in the control of the Enforcement Directorate will be acceptable and can be used against the accused.
Copy of Complaint: While basic jurisprudence calls for the accused to be given a copy of the Complaint, it is not necessary in the enforcement directorate’s investigation of the PMLA cases. It means the Accused will be fighting in Court without knowing the exact charges against them.
When Enforcement Directorate initiates an Enforcement Case Information Report, a copy doesn’t need to be supplied to the Accused. Only the Accused is supposed to answer the questions without knowing the main complaint in the case they are being summoned.
Attachment of property: Any property seized by the Enforcement Directorate for an offence under the Prevention of Money Laundering (PMLA) will be presumed to be from the “proceeds of crime”. It is upto the Accused to show that it is not from the proceeds of the crime. Instead, the burden of proof now shifts towards the Accused, meaning they will have to go through the trial (which may last for years and decades) to get the property back the Enforcement Directorate seized.
The process is to be followed by the Accused.
After receiving a summon from the Enforcement Directorate, the first thing that needs to be determined is the nature of the offence that is being investigated. Usually, the summons that is received will not reveal if you are being called as a witness or are being called as an accused.